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In re Probate of

Decided: July 20, 1961.


Price, Gaulkin and Sullivan. The opinion of the court was delivered by Price, S.j.a.d.


Caveator appeals from the judgment of the County Court, Probate Division, admitting to probate a document dated August 26, 1958 alleged to be the last will and testament of Edward E. Baker, who died October 26, 1959 at the age of 84 years. The proponent of the alleged will, Loraine B. Hipp, and the caveator, Horace E. Baker, are sister and brother and respectively are daughter and son of decedent and are his sole surviving next of kin. With the exception of a minor bequest to decedent's former secretary and a $25 bequest to his son, the challenged document devised decedent's entire estate to his daughter, whom he named executrix. The instrument contained a statement that "I make no other provisions for my said son Horace E. Baker, since I feel that the aid and assistance which I have given to him during my lifetime is sufficiently substantial to discharge any obligation I may have to provide for him, by this, my will."

The principal basic issue litigated was whether proponent had unduly influenced her father to make the will in her favor. Extensive medical and lay testimony bearing on that issue was presented on behalf of the caveator.

As excerpts from proponent's deposition taken before trial pursuant to R.R. 4:16-1 were, on caveator's offer, received in evidence as part of his case, proponent's pretrial partial explanation of some of the factual situations bearing on the issue of undue influence were before the trial court. With this situation existing the trial court at the conclusion of the caveator's case, granted proponent's motion to dismiss the caveat and did not require her to go forward in open court with her proofs. That action, in view of the evidence then before the court, appellant contends constituted error. Appellant asserts that the evidence adduced showed that at the time of the drafting and execution of the document a confidential relationship existed between decedent and proponent; that decedent, then mentally ill and physically handicapped due to the infirmities of age, was under proponent's

domination; that the acts of proponent hereinafter described evidenced such control and direction by her in the preparation and execution of the alleged will in her favor as to create a presumption of the existence of such undue influence requiring her to produce affirmative evidence in an attempt to overcome that presumption. Appellant contends that the trial court's peremptory dismissal of his caveat and the resultant probate of the will were unwarranted and erroneous.

To assess the merit of appellant's contention we turn to a consideration of the factual situation. The preliminary proofs presented on behalf of proponent showed that the challenged document was signed by decedent at the Asbury Park and Ocean Grove Bank in the presence of Henry H. Winsor and Clarence N. Foster, respectively the bank's manager and chief teller, whose names appear on said document as attesting witnesses. Neither of the men knew decedent or proponent personally. Mrs. Hipp brought her father to the bank without appointment. She introduced herself and him. The manager testified that the proposed will, fully prepared, was then produced by proponent and at her request he read it to her father and, following its execution, delivered it to her. (We refer later to appellant's contention that the alleged will was not executed in accordance with the applicable statute, N.J.S. 3 A:3-2). The manager testified that decedent walked in and out of the bank unaided, seemed fully to understand the provisions of the will as read to him and to comprehend the ceremony of its execution. The teller testified that decedent seemed in good health, composed and unexcited. Following the trial court's admission of the will in evidence over caveator's objection, proponent rested and the caveator proceeded with his proofs.

Although the evidence presented on behalf of the caveator was voluminous, our determination of this appeal does not require that all of the proofs be recited in detail. Reference to the more important factors on which the challenge of

the propriety of the trial court's judgment is based will suffice.

It was shown that on February 1, 1940 decedent had executed a will, bequeathing his entire residuary estate to his wife, with the provision that if she predeceased him his estate was to be divided equally between his son and daughter. His wife died July 5, 1954. From that date to June 1, 1958 decedent lived at his son's home in Westfield, New Jersey, with the exception of time spent vacationing in Florida in 1955, 1956 and 1957 and a period during the summer and autumn of 1957 when his son and daughter-in-law were in Europe. During the latter period, from July 10, 1957 to Thanksgiving, decedent lived at the Ocean Grove home of Mr. and Mrs. C. F. Dodd, to whom reference is hereinafter made.

On January 14, 1955 decedent executed a general power of attorney in favor of his son, a member of the New Jersey Bar since 1947. On May 31, 1955 decedent executed a will drafted by his son. The instrument divided his estate equally between his son and daughter and named them co-executors. Just prior to the departure of the caveator and his wife for Europe on July 9, 1957 another will, also drafted by caveator, was executed by decedent. This will also provided for the equal division of the estate between the son and daughter of decedent but designated a banking institution as the sole executor.

On October 10, 1957 decedent executed another will. It, too, was drafted by his son. In addition to bequests to decedent's former secretary and to his daughter-in-law, Ruth H. Baker, wife of appellant, that will provided that decedent's son be released from any "debt" which he might owe testator at the latter's death and further provided that any advancements by the testator to his son "shall be in addition to, and not in satisfaction of, any legacies or bequests given him" by the will. The will then directed that the residuary estate be divided equally between testator's children. The son was designated as sole executor, with the provision that if he

predeceased the testator a named bank would be substituted. In February 1958 caveator discussed the October 1957 will at a conference with his sister who had procured a copy of it from decedent. She expressed dissatisfaction with its terms.

Caveator testified that, beginning in March 1958, decedent's physical activity became greatly lessened, his hearing became increasingly defective so that even with the aid of a device, which he commenced using in 1954, he complained of difficulty in hearing; he became careless in his "toilet habits" and in his personal hygiene; he seldom read the newspapers or viewed television programs, although theretofore he had daily devoted many hours to each. Caveator further testified that during the same period his father on occasion behaved peculiarly, would talk to an empty chair or a tree or other inanimate object, and expressed apprehension that "thugs were going to break in and take his money away from him." Commencing June 1, 1958 decedent was taken by his son for a month's stay to the home of Mr. and Mrs. Harry Darby in Westfield. Mrs. Darby was a practical nurse. This transfer, caveator testified, was required because of the need for increased care which decedent's condition demanded and which caveator and his wife, who worked at caveator's office, could not give him.

It was developed on the caveator's case that during this period the caveator had his father examined medically by decedent's family physician, Dr. Ross J. Maggio and a specialist whom the latter recommended, Dr. Arthur T. Colley, both of whom testified. Dr. Maggio stated that decedent had shown "periods of confusion" as early as January 1957; that he worsened during the ensuing 18 months; that the doctor conducted a "complete physical examination" of decedent on June 6, 1958 and found decedent "disoriented" and suffering from "advanced cerebral arteriosclerosis with senility"; ...

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